Pennyton Homes Inc. v. Planning Board of Borough of Stanhope

PENNYTON HOMES, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,v.PLANNING BOARD OF THE BOROUGH OF STANHOPE AND THE MAYOR AND COUNCIL OF THE BOROUGH OF STANHOPE, DEFENDANTS-RESPONDENTS

For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Hall, J.

Hall

[41 NJ Page 579] This land subdivision approval case involves a question not specifically passed upon in Levin v. Township of Livingston, 35 N.J. 500 (1961), and Hilton Acres v. Klein, 35 N.J. 570 (1961), viz., whether improvements which a municipality may require a developer to install at his expense are confined to those specified by ordinance at the time tentative approval of the subdivision is granted.

The rights conferred by tentative approval are set forth in the following portion of section 18 of the Municipal Planning Act (1953), N.J.S.A. 40:55-1.18:

"The governing body or the planning board, as the case may be, may tentatively approve a plat showing new streets or roads or the resubdivision of land along a mapped street. This tentative approval shall confer upon the applicant the following rights for a 3-year period from the date of the tentative approval:

(1) that the general terms and conditions upon which the tentative approval was granted will not be changed.

(2) that the said applicant may submit on or before the expiration date the whole or part or parts of said plat for final approval." (Emphasis supplied)

The provision of the act relating to improvements is found in section 21, N.J.S.A. 40:55-1.21:

" Before final approval of plats the governing body may require, in accordance with the standards adopted by ordinance, the installation, or the furnishing of a performance guarantee in lieu thereof, of any or all of the following improvements it may deem to be necessary or appropriate: street grading, pavement, gutters, curbs, sidewalks, street lighting, shade trees, surveyor's monuments, water mains, culverts, storm sewers, sanitary sewers or other means of sewage disposal, drainage structures, and such other subdivision improvements as the municipal governing body may find necessary in the public interest." (Emphasis supplied)

The question, therefore, boils down to whether improvements specified as required by an ordinance as it existed at the date of tentative approval constitute a part of "the general terms and conditions upon which the tentative approval was granted."

To make the issue concrete, in this case the plaintiff obtained tentative approval of its entire development in March 1959. The municipality's subdivision ordinance then required paving of all streets to a width of 30 feet within the requisite 50-foot right of way, but did not specify that sidewalks had to be constructed. In March 1960 the ordinance was amended to increase the paving width to 34 feet (although the right of way width requirement was not

changed) and to compel the installation of four-foot sidewalks on both sides of the right of way. Plaintiff was granted final approval of six of the seven sections of the subdivision at intervals between October 1959 and January 1961. Although all but one of these approvals were granted after the ordinance amendment, the municipality did not insist on the sidewalks or the wider street pavement in any of these sections. Final approval of the last section was sought in November 1961. This time the Planning Board rejected the application because plaintiff had not provided for installation of the wider pavement and sidewalks (and for another reason which was ineffective and has no pertinence now). The Borough's change of position was apparently based on what were considered to be the implications of the Levin opinion (35 N.J. 500), handed down July 14, 1961. On plaintiff's appeal, pursuant to N.J.S.A. 40:55-1.19, the governing body affirmed the action of the board.

Plaintiff then instituted this suit to compel a grant of final approval based, inter alia, on 30-foot street pavements without sidewalks. It was successful in the trial court, but the Appellate Division, on the municipality's appeal, reversed this aspect of the determination, holding that the municipality could lawfully increase the nature and extent of the required improvements between tentative and final approval. 78 N.J. Super. 588 (1963). We granted certification on plaintiff's petition. 40 N.J. 503 ...

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